The Future of Emotional Harm

Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims—like evidence of physical harm—should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims

The Future of Emotional Harm

Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims—like evidence of physical harm—should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims

Preemption of Bivens Claims: How Clearly Must Congress Speak?

Part I of this Article demonstrates that the Court\u27s approach to congressional remedial schemes has changed significantly since Bivens. Part II of the Article investigates whether this change in approach is warranted by the principle that, when filling gaps in federal legislation (i.e., creating federal common law), the Court should exercise caution because it is acting in an area primarily entrusted to Congress. In Part III, the Article contrasts the Court\u27s approach in the Bivens line of cases to its approach in the federal-state preemption area, where the Court is faced with a similar problem of determining whether one remedial scheme (that of a state) may coexist with another remedial scheme (that of Congress)

Sex-Based Brain Differences and Emotional Harm

Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether women experience and process stress and trauma differently than men. This Article argues that these studies may eventually inform the use of the reasonableness standard for freestanding emotional harm claims. As science further develops, courts may either apply a reasonable woman standard in limited contexts or at least allow jurors to consider evidence of sex-based differences in applying a reasonable person standard. Recognizing these differences, courts have already begun to apply the reasonable woman standard to hostile workplace environment claims, and science may support broader use of that standard, especially for negligent and intentional infliction of emotional harm claims

Tort Immunity in the Pandemic

The Covid-19 pandemic set off a public health emergency that quickly brought doctors and other health care providers to the front line, while shuttering businesses throughout the United States. In response to the emergency, the federal and state governments rapidly created broad protections from tort liability for health care providers. To encourage businesses to reopen, some states have also provided liability protection for businesses from personal injury suits brought by patrons and employees. Congress is considering similar protections for businesses as it contemplates further aid packages. Some industries, like nursing homes and universities, are lobbying for specific immunity. This Essay overviews some of these liability shields, examines their relative necessity and value, and anticipates some of the issues that will inevitably arise as the provisions are implemented. Part I briefly explains that, even without liability shields, potential plaintiffs face high hurdles under traditional common law principles to successfully bring personal injury lawsuits for Covid-19 related injuries. Proof of the elements of negligence and overcoming traditional defenses will be difficult, whether suit is brought against businesses, health care workers, or employers. These common law obstacles call into question the need for further liability protections. That said, the strongest case for liability shields is for health care workers–those who are on the frontlines of the battle against the pandemic. Part II reviews the shields that have been promulgated for these workers both at the state and federal levels. While Part II concludes that these shields serve health care policy, it questions whether similar protections should extend to treatment of non-Covid-19 patients, as is being advocated by the American Medical Association. Parts III and IV consider whether the need for immunity for businesses is comparable to health care workers. These Parts conclude that providing immunity to businesses is counterproductive and detracts from important values served by tort liability: Part III from the perspective of suits against employers and Part IV from the point of view of patron suits against businesses open to the public. Preliminarily, it is debatable whether immunity shields are even necessary. Lawmakers assume these shields are critical to encouraging businesses to resume normal business activities, an assumption that is not supported by the data. It is likely that other challenges facing businesses in the pandemic, such as reduced business operations to allow for social distancing or lower patronage due to public fear of exposure, may be inhibiting resumption of full business activities far more than the potential for liability. Significantly, very few personal injury lawsuits have been filed against businesses since the pandemic began in the United States

Biomarkers, Concussions, and the Duty of Care

Article published in the Michigan State Law Review

Biomarkers, Concussions, and the Duty of Care

Article published in the Michigan State Law Review

Tort Immunity in the Pandemic

The Covid-19 pandemic set off a public health emergency that quickly brought doctors and other health care providers to the front line, while shuttering businesses throughout the United States. In response to the emergency, the federal and state governments rapidly created broad protections from tort liability for health care providers. To encourage businesses to reopen, some states have also provided liability protection for businesses from personal injury suits brought by patrons and employees. Congress is considering similar protections for businesses as it contemplates further aid packages. Some industries, like nursing homes and universities, are lobbying for specific immunity. This Essay overviews some of these liability shields, examines their relative necessity and value, and anticipates some of the issues that will inevitably arise as the provisions are implemented. Part I briefly explains that, even without liability shields, potential plaintiffs face high hurdles under traditional common law principles to successfully bring personal injury lawsuits for Covid-19 related injuries. Proof of the elements of negligence and overcoming traditional defenses will be difficult, whether suit is brought against businesses, health care workers, or employers. These common law obstacles call into question the need for further liability protections. That said, the strongest case for liability shields is for health care workers–those who are on the frontlines of the battle against the pandemic. Part II reviews the shields that have been promulgated for these workers both at the state and federal levels. While Part II concludes that these shields serve health care policy, it questions whether similar protections should extend to treatment of non-Covid-19 patients, as is being advocated by the American Medical Association. Parts III and IV consider whether the need for immunity for businesses is comparable to health care workers. These Parts conclude that providing immunity to businesses is counterproductive and detracts from important values served by tort liability: Part III from the perspective of suits against employers and Part IV from the point of view of patron suits against businesses open to the public. Preliminarily, it is debatable whether immunity shields are even necessary. Lawmakers assume these shields are critical to encouraging businesses to resume normal business activities, an assumption that is not supported by the data. It is likely that other challenges facing businesses in the pandemic, such as reduced business operations to allow for social distancing or lower patronage due to public fear of exposure, may be inhibiting resumption of full business activities far more than the potential for liability. Significantly, very few personal injury lawsuits have been filed against businesses since the pandemic began in the United States